Citation Nr: 9823189
Decision Date: 07/30/98 Archive Date: 08/04/98
DOCKET NO. 96-13 572 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased disability rating for post-
traumatic stress disorder (PTSD), currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his son
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
REMAND
The veteran had active military service from August 1965 to
January 1967. This matter comes before the Board of
Veteransí Appeals (Board) on appeal from a January 1996
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Petersburg, Florida, which denied
a disability rating in excess of 30 percent for the veteranís
service-connected PTSD. For the following reasons, the Board
finds that additional evidentiary development is needed prior
to further disposition of the veteranís claim.
First, an additional psychiatric examination by a board of
three psychiatrists is necessary. The medical evidence
regarding the severity of the veteranís PTSD, and the
resulting social and occupational impairment, is
contradictory and must be reconciled. The Board does not
have sufficiently clear medical evidence upon which to base a
decision. See Colvin v. Derwinski, 1 Vet. App. 171, 175
(1991) (holding that Board must rely on independent medical
evidence to support its findings and must not refute medical
evidence in the record with its own unsubstantiated medical
conclusions); Santiago v. Brown, 5 Vet. App. 288, 292 (1993)
(distinguishing between an unsubstantiated medical
determination, which the Board is unauthorized to render, and
a legal determination, i.e., a finding of fact which the
Board, as fact finder, has derived from a review of medical
evidence which is sufficiently conclusive as to the
underlying medical issues to enable the Board to render the
legal determination).
Furthermore, the medical evidence also shows diagnoses of
dysthymic disorder and recurrent major depression. It is
unclear whether any of the veteranís social and occupational
impairment is attributable to these nonservice-connected
disorders. It is essential that an attempt be made to
separate the effects of the veteranís service-connected PTSD
from his other psychiatric disorders so that the appropriate
disability rating may be assigned. Therefore, in order to
assure that VAís statutory obligation to assist the veteran
is fulfilled, another examination is required. See Waddell
v. Brown, 5 Vet. App. 454, 456-57 (1993) (the Boardís
evaluation cannot be fully informed without an examination
thoroughly describing the degree of disability attributable
to the veteranís service-connected psychiatric disorder as
opposed to diagnosed, nonservice-connected psychiatric
disorder(s)); see also Shoemaker v. Derwinski, 3 Vet.
App. 248, 254-55 (1992).
Second, there are additional medical records that the RO
should attempt to obtain. In February 1998, the veteran
submitted a statement and evaluation from Edward Zebooker,
D.O. The treatment records supporting Dr. Zebookerís
opinions were not requested by the RO. These treatment
records are relevant to the veteranís claim for an increased
rating and necessary for a fair adjudication of his claim.
Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, an
attempt to obtain these records is warranted.
Third, the claims file shows that the veteran is receiving
Social Security disability benefits. The RO has not
requested all medical and adjudication records relating to
his Social Security disability benefits, and an attempt to
obtain these records is warranted. See Hayes v. Brown, 9
Vet. App. 67, 74 (1996) (VA is required to obtain evidence
from the Social Security Administration, including decisions
by the administrative law judge, and give the evidence
appropriate consideration and weight).
Accordingly, in order to obtain additional information, the
case is REMANDED for the following:
1. Ask the veteran to list the names and
addresses of any medical providers who
have treated him for his PTSD since 1996.
After securing any necessary releases,
request from the sources listed by the
veteran all records of any treatment.
The Board is especially interested in
treatment records from Edward Zebooker,
D.O. Associate all records obtained with
the claims file. If any private
treatment records are not obtained, tell
the veteran and his representative of the
negative results, and let the veteran
know that it is his ultimate
responsibility to furnish evidence in
support of his claim. 38 C.F.R.
ß 3.159(c) (1997).
2. Request the veteranís medical and
adjudication records from the Social
Security Administration. The letter
requesting such records should include a
citation to appropriate legislative
authority requiring that other Federal
agencies provide such information as the
Secretary may request for the purposes of
determining eligibility for or amount of
benefits. See 38 U.S.C.A. ß 5106 (West
1991). Associate all correspondence and
any records received with the claims
file.
3. Schedule the veteran for a
psychiatric examination with a board of
three psychiatrists. The entire claims
file, including the vocational
rehabilitation file, and a copy of this
remand are to be made available to the
examiners, and the examiners are asked to
indicate in the examination report that
the claims file was reviewed.
First, all necessary tests and studies
should be conducted in order to ascertain
the severity of the veteranís service-
connected PTSD. It is requested that the
examiners assign a Global Assessment of
Functioning (GAF) score consistent with
the American Psychiatric Association:
Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-
IV), including an explanation of what the
assigned code means, limited, if
possible, to the effects of PTSD, without
reference to any other nonservice-
connected psychiatric condition. If it
is not possible to assign a GAF to the
PTSD alone, the examiners should so
state.
Second, it is requested that the VA
examiners discuss the prior medical
evidence regarding the veteranís service-
connected PTSD and reconcile any
contradictory evidence regarding the
level of the veteranís occupational
impairment and any prior medical findings
such as GAF scores. The examinersí
attention is directed to the following
medical evidence: (1) the report of a VA
examination conducted in December 1995,
wherein the examiner concluded the
veteranís PTSD was of moderate severity;
(2) a VA outpatient progress note dated
in January 1997, wherein the examiner
stated that the veteran could not hold a
job because he could not reliably recall
or follow simple commands and could not
relate appropriately to people; (3) a VA
evaluation completed by Dr. Henderson in
January 1997, wherein it was indicated
that the veteran was unemployable due to
his PTSD symptoms; (4) a VA evaluation
completed by Dr. Henderson in March 1997,
wherein a GAF score of 30 was assigned;
(5) the report of a VA examination
conducted in May 1997, wherein the
examiner assigned a GAF score of 70, yet
indicated that the veteran had a marked
degree of social and industrial
impairment; (6) the report of a VA
examination conducted in November 1997,
wherein the examiner concluded that the
veteran was not unemployed due to
psychiatric symptoms, a GAF score of 70
was assigned, and it was noted that the
veteranís PTSD caused mild difficulties
in his interpersonal relationships; (7) a
VA evaluation completed by Dr. Zebooker
in January 1998, wherein a GAF score of
30 was assigned; and (8) a VA vocational
rehabilitation report dated in June 1991,
wherein it was determined that the
veteranís unemployability resulted from
his nonservice-connected back disability,
as he had compensated for the disabling
effects of PTSD through training and
relevant work experience.
Third, the examiners are asked to render
a medical opinion as to which of the
veteranís symptomatology and/or social
and occupational impairment is
attributable to the service-connected
PTSD as opposed to any nonservice-
connected conditions such as dysthymic
disorder and/or recurrent major
depression. If it is impossible to
distinguish the symptomatology and/or
social and occupational impairment due to
the nonservice-connected condition(s),
the examiners should so indicate.
The medical rationale for all opinions
expressed must be provided.
4. Following completion of the above,
review the claims folder and ensure that
the report includes fully detailed
descriptions of all opinions requested.
If it does not, it must be returned to
the examiners for corrective action.
38 C.F.R. ß 4.2 (1997).
5. Thereafter, readjudicate the
veteranís claim for an increased
disability rating for his service-
connected PTSD. If the benefit sought on
appeal remains denied, provide the
veteran and his representative a
supplemental statement of the case, and
allow an appropriate period of time for
response. The veteran is free to furnish
additional evidence and argument while
the case is in remand status. Booth v.
Brown, 8 Vet. App. 109 (1995).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional evidence. No inference
should be drawn regarding the final disposition of this claim
as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veteransí Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veteransí Benefits Improvements Act of 1994, Pub. L.
No. 103-446, ß 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
ß 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBAís ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1997).
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